Citation Nr: 0511102
Decision Date: 04/19/05 Archive Date: 04/27/05
DOCKET NO. 03-31 587 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Entitlement to an initial evaluation in excess of 30
percent for post-traumatic stress disorder (PTSD).
2. Entitlement to service connection for bilateral flat
feet.
3. Entitlement to service connection for bilateral hearing
loss.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
K.A. Kennerly, Associate Counsel
INTRODUCTION
The veteran served on active duty in the United States Air
Force from July 1964 to April 1968. The veteran also had
National Guard service from November 1975 to October 1997.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2002 rating decision of the
Huntington, West Virginia Regional Office (RO) of the
Department of Veterans Affairs (VA), which denied the
veteran's claims for entitlement to service connection for
bilateral flat feet and bilateral hearing loss and granted
the veteran's claim for service connection for PTSD,
assigning an evaluation of 30 percent disabling.
The issue of service connection for bilateral hearing loss is
ready for appellate review. The issues of an increased
disability rating for PTSD, and that of entitlement to
service connection for bilateral pes planus, are addressed in
the remand portion of the decision below and is remanded to
the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDING OF FACT
Bilateral hearing loss was not incurred in or aggravated by
active military service.
CONCLUSION OF LAW
The criteria for the establishment of service connection for
bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110,
5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307(a)(1),
3.307(a)(3), 3.309(a), 3.385 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
Preliminary Matter: VA's Duty to Notify and Assist
Prior to proceeding with an examination of the merits of the
claim, the Board must determine whether the veteran has been
notified under the provisions of the Veterans Claims
Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§
5102, 5103, 5103A, 5107 (West 2002), and its implementing
regulations, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159
and 3.326 (2004).
First, VA has a duty to notify the veteran and his
representative of any information and evidence needed to
substantiate and complete a claim. See 38 U.S.C.A. §§ 5102,
5103 (West 2002); 38 C.F.R. § 3.159(b) (2004). Information
means non-evidentiary facts, such as the claimant's address
and Social Security number or the name and address of a
medical care provider who may have evidence pertinent to the
claim. 38 C.F.R. § 3.159(a)(5) (2004). Second, VA has a
duty to assist the veteran in obtaining evidence necessary to
substantiate the claim. See 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159(c) (2004).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004) it was
observed that VA must (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claims. This new "fourth element" of
the notice requirement comes from the language of 38 C.F.R. §
3.159(b)(1) (2004).
The record indicates that the veteran has been fully apprised
of what evidence would be necessary to substantiate his
claim, as well as informed of the specific assignment of
responsibility for obtaining such evidence. See 38 U.S.C.A.
§ 5103(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In specific compliance with Quartuccio, the veteran was
advised of the evidence, which would substantiate his claim,
and the responsibility for obtaining it, by letters dated in
August 2001 and August 2002. The letters informed the
veteran what evidence and information VA would be obtaining
as well as the evidence that the veteran needed to provide.
The letters explained that VA would make reasonable efforts
to help him get evidence such as medical records, employment
records, etc., but that he was responsible for providing
sufficient information to VA to identify the custodian of any
records.
The record indicates that by letter dated in September 2001,
(i.e., approximately one month after the initial advisement
to the veteran), the veteran responded that he had no further
evidence to submit in support of his claim. In March 2002,
the veteran was provided a status report on the development
of his claims, to which he made no response.
The veteran was also advised in the August 2001 and August
2002 letters that he should submit any additional information
or evidence regarding his claims, or advise VA as to its
whereabouts, thus in satisfaction of the fourth element of
the Pelegrini inquiry.
The Board notes in passing that the October 2002 rating
decision on appeal, the statement of the case (SOC) and
multiple supplemental correspondence, also adequately
informed the veteran of the types of evidence needed to
substantiate his claims. August 2001 and August 2002 VCAA
letters also specifically addressed the legal requirements of
a service connection claim. Therefore, the Department's duty
to notify has been fully satisfied.
With respect to the timing of the VCAA notification, the
Board notes that the August 2001 and August 2002 VCAA
notification letters were provided to the veteran prior to
the initial adjudication of his claim in October 2002. See
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The VCAA notification letters are also legally sufficient.
See Paralyzed Veterans of America, et. al. v. Secretary of
Department of Veterans Affairs (PVA), Nos. 02-7007, -7008, -
7009, -7010 (Fed. Cir. September 22, 2003); Disabled American
Veterans, et. al. v. Secretary of Department of Veterans
Affairs (DAV), 327 F.3d 1339 (Fed. Cir. 2003). The Federal
Circuit has held that 38 C.F.R. §§ 3.159(b)(1) and
19.9(a)(2)(ii) are invalid to the extent they provide a
claimant "not less than 30 days" to respond to a VCAA
notification letter because the regulations are contrary to
38 U.S.C.A. § 5103(b), which provides a claimant one year to
submit evidence. However, the statute was recently amended
to permit VA to adjudicate a claim within one-year of receipt
of the claim. See Veterans Benefits Act of 2003, Pub. L. No.
108-183, 117 Stat. 2651 (Dec. 16, 2003). Therefore, the
veteran was notified properly of his statutory rights.
With respect to VA's duty to assist the veteran, the RO
requested and obtained all available service records from the
National Personnel Records Center (NPRC) and the State of
West Virginia Office of the Adjutant General. As is noted
above, the veteran has both active military duty from July
1964 to April 1968; and Army National Guard service from
November 1975 to October 1997.
Service medical records from the veteran's period of active
duty have not been located, and a review of the record
indicates that all reasonable efforts to obtained them have
been exhausted. The RO attempted to locate the active duty
military records through correspondence with the veteran and
with National Personnel Records Center in February and July
2002. Further, in July 2002, the RO contacted the West
Virginia Office of the Adjutant General (i.e., the records-
keeper of the state National Guard), and requested that it
again attempt to secure active duty medical records. An
August 2002 report of contact memorandum indicates that the
Adjutant General's office reported it had not located any
further medical records, and that all available had been
previously forwarded to the RO. A further memorandum of
record also indicates that the National Personnel Records
Center was also contacted, but to no avail.
As will be noted below, however, the absence of the service
medical records from the veteran's active service is not
dispositive to the veteran's claims, as the record contains
numerous service medical records and examination reports from
the veteran's National Guard service, all indicating no
hearing loss within the meaning of the law at the times of
the examination.
In this circumstance, there is no duty on the part of VA to
provide a medical examination, because as in Wells v.
Principi, 326 F.3d 1381 (Fed. Cir. 2003), the veteran has
been advised of the need to submit competent medical evidence
indicating that he has the disorders in question, and further
substantiating evidence suggestive of a linkage between his
active service and the current disorders, if shown. The
veteran has not done so, and no evidence thus supportive has
otherwise been obtained. Here, as in Wells, the record in
its whole, after due notification, advisement, and assistance
to the veteran under the VCAA, does not contain competent
evidence to suggest that the disorders are related to the
veteran's military service.
Given these matters of record, there is no competent evidence
that "the disability or symptoms may be associated with the
claimant's active military . . . service." 38 U.S.C.A §
5103A(d); cf. Charles v. Principi, 16 Vet. App. 370 (2002)
(Holding that under 38 U.S.C.A § 5103A(d)(2), VA was to
provide a medical examination as "necessary to make a
decision on a claim, where the evidence of record, taking
into consideration all information and lay or medical
evidence, [including statements of the claimant]," and
where, the claimant had been diagnosed to have tinnitus, and
had proffered competent lay evidence that he had had
continuous symptoms of the disorder [i.e., ringing in the
ears] since his discharge. Because there was evidence of
record satisfying two of the requirements of the statute,
i.e., competent evidence of a current disability and evidence
indicating an association between the veteran's disability
and his active service, but there was not of record, as
relied upon in part by the Board in denying his claim,
competent medical evidence addressing whether there is a
nexus between his tinnitus and his active service, VA was to
provide the claimant with a medical "nexus" examination).
The record also includes private medical records, Board
hearing transcript, and the veteran's own contentions. As
such, VA has no outstanding duty to assist the veteran in
obtaining any additional information or evidence. At every
stage of the process, the veteran was informed of the
information needed to substantiate his claim, and VA has
obtained all evidence identified by the veteran. Therefore,
the Board finds that all indicated medical records have been
obtained and the veteran has not referenced any outstanding
records or information that he wanted VA to obtain.
Thus, the record indicates that VA has done everything
reasonably possible to assist the veteran. In the
circumstances of this case, additional efforts to assist him
in accordance with the VCAA would serve no useful purpose.
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran); see
also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands
which would only result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran are to
be avoided). VA has satisfied its duties to inform and assist
the veteran at every stage of this case.
The Merits of the Claim -
Service Connection for Bilateral Hearing Loss
The veteran argues that he sustained bilateral hearing loss
as a result of active military duty. Having carefully
considered the claim in light of the record and the
applicable law, the Board is of the opinion that the
preponderance of the evidence is against the claim and the
appeal will be denied on the basis that no evidence has been
obtained to indicate that the veteran has the disorder at
issue.
The law provides that service connection may be granted for
disability or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131. The resolution
of this issue must be considered on the basis of the places,
types and circumstances of his service as shown by service
records, the official history of each organization in which
the claimant served, his medical records and all pertinent
medical and lay evidence. Determinations relative to service
connection will be based on review of the entire evidence of
record. 38 C.F.R. § 3.303(a).
As a general matter, service connection for a disability on
the basis of the merits of such claim is focused upon (1) the
existence of a current disability; (2) the existence of the
disease or injury in service, and; (3) a relationship or
nexus between the current disability and any injury or
disease during service. Hickson v. West, 12 Vet. App. 247,
253 (1999). See Baldwin v. West, 13 Vet. App. 1, 8 (1999);
Cuevas v. Principi, 3 Vet. App. 542 (1992).
Service connection for impaired hearing shall only be
established when hearing status as determined by audiometric
testing meets specified pure tone and speech recognition
criteria. Audiometric testing measures threshold hearing
levels (in decibels) over a range of frequencies (in Hertz).
See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The
determination of whether a veteran has a disability based on
hearing loss is governed by 38 C.F.R. § 3.385 (2004). For
the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, or 4000 Hertz is 40 decibels or greater; or when
the auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. See 38 C.F.R. § 3.385
(2004).
As noted, the record contains no evidence to indicate that
the veteran presently has a hearing loss, nor is there
evidence of such a disability at any time subsequent to
active service.
In December 1975 the veteran submitted to Air Force
examinations for enlistment and Airborne training in the
Reserves. On the veteran's Standard Form (SF) 93, the
veteran indicated that he did not have any ear trouble or
hearing problems. On the SF 88, the examiner noted the
veteran's hearing to be normal. The results of the
audiometric examination were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
5
/
5
LEFT
10
5
5
/
15
On the examination conducted in December 1976, the veteran's
SF 93 did not indicate he had any ear or hearing problems.
On the SF 88, the examiner noted the veteran's hearing and
ears to be normal. The results of the audiometric
examination were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
5
/
5
LEFT
10
5
5
/
15
On examination conducted in July 1978, the veteran's SF 93
did not indicate he suffered from any ear or hearing
problems. On the SF 88, the examiner noted the veteran's
hearing and ears to be normal. The results of the
audiometric examination were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
0
0
0
0
LEFT
10
0
0
0
5
On the examinations conducted in March 1980, November 1980
and March 1983, on the veteran's SFs 93, he signed a printed
acknowledgement that he had not experienced any significant
illness or injury since his last examination and was not
taking any medications.
On the examination conducted in November 1980, the examiner
noted on the veteran's SF 88, that his ears and hearing were
normal. The results of the audiometric examination were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
0
5
5
LEFT
5
5
5
5
10
Upon examination in March 1989, the veteran noted on his SF
93 that he did not have hearing loss, but did not know if he
had ear, nose and throat trouble. He stated that he
experienced some drainage of the right ear. The examiner
commented that the veteran had otitis of the right ear.
However, the examiner noted that the veteran's hearing was
normal. The audiometric examination results were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
0
0
0
0
10
Thus, the record does not indicate that the veteran, at any
time subsequent to his active military service (or, indeed,
after his period of Army National Guard Service) has had
hearing loss within the meaning of the law. 38 C.F.R. §
3.385.
It is well-settled that the law limits entitlement for
service-related diseases and injuries to cases where the
underlying in-service incident has resulted in a disability -
the first prong of a successful claim of service connection.
In the absence of proof of a present disability, there is no
valid claim presented. See Brammer v. Derwinski, 3 Vet.
App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141
(1992). By "disability" is meant "an impairment in
earnings capacity resulting from such diseases and injuries
and their residual conditions in civil occupations." 38
C.F.R. § 4.1; see Davis v. Principi, 276 F.3d 1341, 1345
(Fed. Cir. 2002) [Citing with approval VA's definition of
"disability" in 38 C.F.R. § 4.1 and "increase in
disability" in 38 C.F.R. § 3.306(b)]; see also Leopoldo v.
Brown, 4 Vet. App. 216, 219 (1993) (A "disability" is a
disease, injury, or other physical or mental defect.").
Accordingly, the appeal is denied.
ORDER
Service connection for bilateral hearing loss is denied.
REMAND
The Board has determined that additional development of the
record is required with regard to the claims of an increased
rating for PTSD and of service connection for bilateral flat
feet.
As to PTSD, the veteran has reported that he was terminated
from his employment with the State of West Virginia due to
PTSD symptoms. There is no evidence of such termination of
record, and because such would clearly be relevant to a
determination of the severity of the veteran's psychiatric
disorder, the RO will be directed to afford the veteran an
opportunity to submit such evidence. Although the veteran
reported during a December 2004 Travel Board hearing that he
had obtained temporary employment, such was due to expire at
the end of the month.
In this regard, the veteran has reasonably raised a claim of
entitlement to a total disability evaluation, which will be
considered by the RO upon readjudication. See Roberson v.
Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Holding that
once a veteran submits evidence of a medical disability and
submits a claim for an increased disability rating with
evidence of unemployability, VA must consider a claim for a
total rating based on individual unemployability).
As to bilateral pes planus, the veteran's service medical
records indicate that the veteran complained of foot pain in
April 1966, while on active duty. The examiner's notes
stated that the veteran was an Air Policeman and spent most
of his time in a standing position. The examiner stated that
the veteran had flat feet and that hip pain was related to
his flat feet. The veteran was advised to obtain shoe
support. Later in April 1966, progress notes indicated that
the veteran continued to have flat feet, which required him
to rest.
The veteran submitted a letter from T.M., who conducted
Reflexology appointments for him for two years. The letter
stated that the veteran's feet had a low arch and thus
possibly indicative of pain in the back and/or neck from the
lack of support. Progress notes dated June 2000, post
examination, diagnosed the veteran with moderate to severe
pes planus.
A progress note dated October 2001, indicated that the
veteran complained of his feet burning and being in pain.
There was nothing further in the record to establish
bilateral pes planus.
Given the medical evidence suggesting that the veteran
currently has a bilateral foot disorder, and evidence of some
foot symptoms during active military service, the veteran
will be afforded a VA medical examination to ascertain
whether the current disorder is linked to military service.
See Wells, supra.
Accordingly, this case is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC for the following
actions:
1. The RO will contact the veteran and
request that he provide evidence of his
termination from employment with the
State of West Virginia, including any
medical evidence generated during the
course of that determination; and any
other evidence not currently of record
reflecting the severity or symptoms of
the diagnosed PTSD.
2. The RO will afford the veteran
clarifying VA medical examinations as
below. The veteran's claims folder, and
a copy of this remand, must be reviewed
by the examiner in conjunction with the
examinations, and the examiners must
acknowledge this receipt and review in
any report generated as a result of this
remand. The following examinations will
be conducted:
a. An appropriate examination to
ascertain whether the veteran has
any foot disability related to any
incident of active military service.
All indicated tests should be
accomplished.
b. An appropriate examination to
ascertain the severity of the
veteran's PTSD. The examiner should
identify all of the symptoms or
manifestations of the veteran's
PTSD. The examiner should comment
upon the severity of symptoms and
the impact of PTSD symptomatology
upon the veteran's daily
functioning. The examiner must
assign a Global Assessment of
Functioning (GAF) score. The
examiner should indicate whether the
service-connected PTSD prevents the
veteran from obtaining or maintain
substantially gainful employment.
The report of the examination should
be associated with the veteran's VA
claims folder.
3. The RO should take such additional
development action as it deems proper
with respect to the claims, including the
conduct of any other appropriate VA
examinations, and follow any applicable
regulations and directives implementing
the provisions of the VCAA as to its
notice and development. Following such
development, the RO should review and
readjudicate the claims. If evidence
suggests that the veteran's service-
connected disorder render him
unemployable, the RO should consider
adjudication of the claims for a total
disability evaluation under appropriate
regulation. If any such action does not
resolve the claims, the RO shall issue
the veteran a Supplemental Statement of
the Case. Thereafter, the case should be
returned to the Board, if in order.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
Vito. A. Clementi
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs